Angela Johnson was convicted of five counts of aiding and abetting murder in furtherance of a continuing criminal enterprise, in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. She was sentenced to death for four of the murders and to life imprisonment without possibility of parole for the fifth. The district court vacated the sentences after it determined that Johnson's trial counsel had rendered ineffective assistance during the sentencing hearing.

The district court limited the scope of the sentencing rehearing. It ordered that the original jury's decision that Johnson was eligible for the death penalty would stand and that the new jury would decide only the penalty to be imposed for each count of conviction. In doing so, the district court disallowed the government from presenting evidence to prove an aggravating factor that the original jury did not unanimously find. The government filed this interlocutory appeal from the district court's order, arguing that 21 U.S.C. § 848 requires a full sentencing rehearing--that is, that the statute requires the new jury to decide whether Johnson is eligible for the death penalty and whether the death penalty should be imposed. Relatedly, the government argues that the district court erred in excluding evidence. We vacate the district court's order in part and remand the case for further proceedings.

I. Background

A. Statutory Background

Under the Anti-Drug Abuse Act (ADAA), the government may seek the death penalty for the offense of murder in furtherance of a continuing criminal enterprise. See 21 U.S.C. § 848(e)(1)(A), § 848(h). The government must file notice of its intent to do so and set forth the aggravating factors that it will try to prove as the basis for the death penalty. § 848(h). If the jury returns a guilty verdict, the district court must " conduct a separate sentencing hearing to determine the punishment to be imposed." § 848(i)(1). If redetermination of a sentence under the ADAA is necessary, the sentencing rehearing must be conducted " before a jury impaneled for the purpose of the hearing[.]" § 848(i)(1)(B)(iv). We have held that a district court may bifurcate a capital sentencing hearing into an

The ADAA sets forth what the jury must consider and decide during the sentencing hearing. " The jury . . . shall consider all information received during the hearing. It shall return special findings identifying any aggravating factors set forth in subsection (n) of this section, found to exist." § 848(k). The defendant is eligible for the death penalty only if the jury unanimously finds that the government has proved at least one of the aggravating factors set forth in § 848(n)(1) and at least one of the aggravating factors set forth in § 848(n)(2)-(12). § 848(k) (setting forth the findings the jury must return and requiring that " [a] finding with respect to any aggravating factor must be unanimous" ); see § 848(j) (requiring the government to prove beyond a reasonable doubt the existence of any aggravating factor). If the jury finds the defendant eligible, it then decides whether the death penalty should be imposed. In making that decision, the jury considers whether the government proved any of the non-statutory aggravating factors that were alleged in the notice of intent and whether the defendant proved any mitigating factors. See § 848(j) (requiring the defendant to prove by a preponderance of the evidence the existence of any mitigating factor); § 848(k) (providing that a finding with respect to a mitigating factor may be made by one or more of the members of the jury, who can then weigh that factor). The jury must then weigh the statutory and non-statutory aggravating factors that it unanimously found to exist, along with any mitigating factors that any juror found to exist, to determine the defendant's sentence.[1]

B. Factual and Procedural Background

In July 1993, Johnson helped Dustin Honken abduct and kill Greg Nicholson, Lori Duncan, and Duncan's young daughters, Kandi and Amber. A few months later, she helped Honken kill Terry DeGeus. Both Nicholson and DeGeus had distributed methamphetamine that they had purchased from Honken and were killed after police began investigating their involvement in the drug enterprise led by Honken. Johnson was charged with five counts of aiding and abetting murder in furtherance of a continuing criminal enterprise, among other crimes.

The government filed its notice of intent to seek the death penalty, setting forth the statutory and non-statutory aggravating factors that it would seek to prove at the sentencing hearing. After the jury found Johnson guilty of the murder charges, the district court held a separate sentencing hearing to determine the punishment to be imposed.[2] The district court bifurcated

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the sentencing hearing, so that the jury was first required to decide whether Johnson was eligible for the death penalty and then, if it found her eligible, to decide whether she should be sentenced to death or life imprisonment.

During the eligibility phase of the sentencing hearing, the jury heard only argument from counsel; no evidence was presented. The jury found that Johnson was eligible for the death penalty on each count of conviction because the government had proved certain statutory aggravating factors. Specifically, the jury found that Johnson had " intentionally engaged in conduct intending that [each victim] be killed or that lethal force be employed against the victim, which resulted in the death of the victim." See § 848(n)(1)(C). With respect to Nicholson, Lori Duncan, and DeGeus, the jury also found that Johnson had committed each offense in an especially heinous, cruel, or depraved manner in that each offense involved torture and serious physical abuse to the victim. See § 848(n)(12). The jury determined that the children, Kandi and Amber, were particularly vulnerable due to their young ages. See § 848(n)(9). Although the government had alleged that Johnson committed each offense after substantial planning and premeditation, the jury unanimously found that factor only as to the murder of DeGeus. See § 848(n)(8).

After the jury returned its eligibility verdict, the government presented evidence to support the non-statutory aggravating factors that it had alleged, and Johnson presented mitigating evidence. The jury was instructed to weigh the statutory aggravating factors that it had found in the eligibility phase, together with any of the non-statutory aggravating factors and mitigating factors that it found in the penalty-selection phase, to determine whether to impose a sentence of death or life imprisonment on each count. The jury returned a sentence of life imprisonment for the murder of Nicholson and sentences of death for the murders of Lori Duncan, Kandi Duncan, Amber Duncan, and DeGeus.

On direct appeal, we affirmed the five counts of conviction for aiding and abetting murder in furtherance of a continuing criminal enterprise and the sentences imposed on those counts. United States v. Johnson, 495 F.3d 951 (8th Cir. 2007). The United States Supreme Court denied Johnson's petitions for certiorari and for rehearing. Johnson v. United States, 555 U.S. 828, 129 S.Ct. 32, 172 L.Ed.2d 46 (2008) (denying cert.), 555 U.S. 1081, 129 S.Ct. 756, 172 L.Ed.2d 747 (2008) (denying rehearing).

After her direct appeal concluded, Johnson moved to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255. The district court held four evidentiary hearings, spanning eighteen days. After considering the witnesses' testimony, extensive documentary evidence, and the parties' briefing and argument, the district court granted Johnson's motion in part. The district court concluded that Johnson's counsel had failed to investigate and present certain mitigating evidence. The order gave the government sixty days to request a new sentencing hearing or to withdraw the notice of intent ...

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